What is a public performance license?

What is a public performance license?

A public performance license allows licensees to publicly perform copyrighted musical works. Copyright owners have the exclusive right to publicly perform their musical works. [1] "Public" performance means that the work is performed "at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered . . .." [1A] Thus, "[n]o license is required by the Copyright Act, for example, to sing a copyrighted lyric in the shower." [1B] A performance limited to family members and invited guests is not a public performance. [1C] By contrast, the performance of copyrighted musical works in summer camps and schools are "public performances." [2] 

Public performance licensing is most often obtained from performance rights societies ("PROs"), such as ASCAP, BMI, SESAC, and GMR in the United States. However, not all music is licensed by the PROs, and public performance licensing must sometimes be obtained directly from music publishers (or songwriters, if they do not have a publisher).

Do schools need public performance licensing?

Generally not. Although the performance of copyrighted musical works in schools are public performances, most performances of musical works at schools are exempt from public performance licensing requirements under two different statutory provisions:

The In-Classroom Exemption: The public performance of a copyrighted musical work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution in a classroom or similar place devoted to instruction is exempt from public performance licensing requirements unless the performance makes use of unlawfully made copies of the work (e.g., unlicensed sheet music) and the person responsible for the performance knew or had reason to believe the copies were not lawfully made. [3]

This exception only applies to (a) nonprofit educational institutions that are primarily engaged in instruction, where the performance is (b) by instructors or pupils (c) in the course of teaching activities (d) in the classroom or similar place devoted to instruction. This exception does not apply if the performance occurs "in an auditorium or stadium during a school assembly, graduation ceremony, class play, or sporting event, where the audience is not confined to members of a particular class . . .." [4]

The Public Performance Exemption: The public performance of a nondramatic musical work without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, producers, or organizers is exempt from public performance licensing requirements if (A) there is no direct or indirect admission charge; or (B) the proceeds, after deducting reasonable costs of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for private financial gain, unless the copyright owner has served a notice of objection to the performance. [5] This exception would also cover both rehearsals in what could be a public space (e.g., a school's practice field for marching band practice), provided the terms of 17 U.S.C. § 110(4) are met.  

The "exemption would not be lost if the performers, directors, or producers of the performance, instead of being paid directly 'for the performance,' are paid a salary for duties encompassing the performance [such as] performances by a school orchestra conducted by a music teacher who receives an annual salary." [6]

It is important to remember that the exception under 17 U.S.C. § 110(4) applies to the public performance of nondramatic musical works. A "dramatic performance" is "a performance of a musical composition that is woven into and carries forward a definite plot and its accompanying action.” [7] Thus, a “mere exhibition, spectacle or arrangement of scenic effects does not constitute a dramatic work . . . A choreographic work devoid of story or content and mere ballroom and social dances similarly do not constitute dramatic works." [8] Likewise, a dramatic work does not need to have any scenery, costumes, the appearance of being true or real, or dialogue. Id. Likewise, a work remains a dramatic work, regardless of whether the actors are seen in person, mechanically, or not at all. [8] Engaging in dramatic musical performances to the public - such as theatrical, balletic, and operatic performances - always requires grand performance rights licensing.

Further, 17 U.S.C. § 110(4) applies to live, in-person performances. Public performance licensing will be required if the performance is transmitted to the public - for example, it is live streamed or made available for on-demand streaming. The exemption is "limited to public performances given directly in the presence of an audience whether by means of living performers, the playing of phonorecords, or the operation of a receiving apparatus . . .." [9]

Finally, it is important that the performance meets 17 U.S.C. § 110(4)'s requirements. Although rare, certain K-12 ensembles, their schools, or the event organizers may be paid to attend and perform at various events. Likewise, 17 U.S.C. § 110(4) does not apply to organizers or promoters who are paid a fee or other compensation for the public performance. As a result, competition organizers must generally obtain public performance licensing. However, it is usually the organizer's responsibility to ensure such public performance licensing has been obtained. Participating ensembles should check with event organizers to ensure such licensing has been obtained.

Do public performance licenses allow me to create sheet music?

No. The creation of sheet music of a copyrighted musical work is a reproduction of that musical work. Copyright owners possess a separate right to reproduce their copyrighted musical works in the form of sheet music. By contrast, public performance licensing only concerns the copyright owner's exclusive right to perform the copyrighted musical work in public.

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[1] 17 U.S.C. § 106(4). This right does not provide an exclusive public performance right in sound recordings. 17 U.S.C. § 114(a) ("exclusive rights of the owner of a copyright in a sound recording . . . do not include any right of performance under section 106(4)").

[1A] 17 U.S.C. § 101. 

[1B] Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 155 (1975). 

[1C] Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519 (2013).

[2] H. Rep., p. 64; Encyclopaedia Britannica Education Corp. v. Crooks, 558 F. Supp. 1247 (W.D.N.Y. 1983).

[3] 17 U.S.C. § 110(1). 

[4] H. Rep., p. 82; 2 Nimmer on Copyright § 8.15[B].

[5] 17 U.S.C. § 110(4). 

[6] H. Rep., p. 85.

[7] B Kohn, Kohn on Music Licensing (5th Edn. 2019) at 1315-1316. 

[8] 1 Nimmer on Copyright § 2.06[A].

[9] H.Rep., p. 85.